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Audit law (Germany)

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Examination law is the term used to describe the law applicable to examinations – in this case: the determination of performance and knowledge of persons, not, for example, book, balance sheet or material examinations. In Germany, examination law refers exclusively to job-related examinations, i.e. examinations that are necessary for taking up or practising a particular profession, but also examinations and assessments that influence competition with other applicants for a job or the achievable income (usually the grade). Since examination law is part of administrative and constitutional law, it normally only relates to state examinations or examinations regulated by law. These are unproblematically all university examinations and other examinations in the field of vocational training. Contrary to widespread opinion at universities, doctorates and habilitations are also such profession-related examinations to which examination law applies, and not, for example, a legally unregulated conferral of a dignity, as was the case before the Basic Law came into force. Examination law does not apply without further ado to examinations at schools. Whereas in the case of school-leaving examinations the vocational aspect predominates and the law on examinations has also been applied in case-law, competition takes a back seat to the educational aspect, particularly in the case of younger pupils, which is why the law on examinations can only be applied to a limited extent or no longer at all.

As a general rule, the auditor must be neutral and impartial with regard to the audit result. He must therefore not have any legal interests of his own, which is why the auditor cannot use the audit law in his favour. In principle, the examiner has no legal position in the examination, nor is he entitled to act as examiner. In examination law, the examinee and the examination authority are opposed to each other. The activity as an examiner is not subject to the freedom of research and teaching.

The “old” audit law until 1991

Until 1991, the “old” examination law applied, which actually did not deserve this name. The prevailing view was that the examiner had an almost limitless and legally unreviewable scope for assessment, which ultimately permitted and caused rampant arbitrariness. Practically only errors in the external examination process (disturbances, noise, tasks not distributed correctly, etc.) and very gross, virtually imposing assessment errors were open to legal challenge. Effectively, however, it was largely left to the arbitrariness of the examiner how and according to which criteria he assessed and what he considered to be wrong and right as he saw fit. This view has a long tradition and is closely linked to the emergence and history of universities.

Many universities and examiners are more oriented towards tradition than towards current law and are still bound to this view today. It is still formative for the self-image and professional view of many university teachers.

Historically, this is probably related to the fact that students used to have to pay examiners directly for the exam:

“Civil servants under feudalism and then well into the 19th century subsisted on so-called sporteln. These are remunerations in money or kind that the official received as the recipient of a service. Prussian professors, for example, could expect students to thank them with geese or other delicacies after their exams.” (Erwin K. Scheuch(Lit.: von Arnim, 2003))

Incidentally, requesting or accepting advantages for the audit evaluation is now considered a criminal offence of corruption.

The “new” audit law since 1991

The upheaval in examination law occurred primarily as a result of the two decisions of the Federal Constitutional Court of 17 April 1991[1][2] in which essential features of the previous practice were classified as unconstitutional, and the subsequent case law of the administrative courts. In this context, the fundamental rights of freedom of occupation (Art. 12 Paragraph 1 GG) and the guarantee of legal recourse (Art. 19 Paragraph 4 GG) and thus reformed it. Because professional examinations fundamentally represent an encroachment on professional freedom, they must be measured against the Basic Law. The examinee, as the bearer of fundamental rights, must have effective legal recourse against all encroachments on fundamental rights. The examiner is also subject to the constitutional prohibition of arbitrariness.

The case law on this is too extensive to be presented here. For this, reference is made to the literature. However, the essential core principles of the new audit law are:

  • The performance requirements in such an examination and the standards by which the performance rendered is to be evaluated require a statutory basis; the nature and level of the examination barrier must not be inappropriate, unnecessary or unreasonable.
  • From Art. 12 (1) of the Basic Law, the general principle of assessment for professional examinations is that a justifiable solution which is logically justified by weighty arguments may not be assessed as incorrect. In principle, correct answers and usable solutions may not be assessed as wrong and lead to failure. In jurisprudence and literature, this is abbreviated but correctly adopted as correct answers must not be assessed as incorrect.
  • The examiner must give comprehensible reasons for his assessment. The examinee has access to the files.
  • Professional errors by the examiner are fully subject to administrative review.
  • The examiner must not miss anything that was not required in the task. He may not assess anything that does not allow conclusions to be drawn about the skills to be established by the examination.
  • Finally, the examiner has a certain scope of assessment which is naturally withdrawn from review by the court. However, this leeway only opens up to him when the assessment of the performance and the professional classification have been carried out without error. Only when the examiner has taken full note of the examination performance, has correctly classified its defensibility (strictly speaking, it does not even have to be “correct” in the actual sense, but only defensible and consistent, even pure consequential errors after initially setting the wrong course may not be assessed as incorrect), does his scope for assessment open up, which is based on his experience as a yardstick and which is removed from judicial review.
  • To compensate for this, the examinee has been given leeway in answering, which the examiner must respect. The candidate is allowed to have his own opinion. It must not be judged to be wrong simply because the examiners disagree. Examinations must be designed in such a way that the candidate is able to express his own opinion which differs from that of the examiner. An examination performance may not be assessed as incorrect solely because it deviates from the sample solution or because, for example, English technical terms were used instead of German.
  • Moreover, because the guarantee of legal recourse does not tolerate any loopholes, a second legal remedy has been added to the legal recourse via the administrative courts, namely the reconsideration procedure, in which the examinee can raise technical objections to the assessment. The examiner must deal with these objections, provided they are concrete and substantiated. If they are justified, he must improve his assessment accordingly. He cannot switch to a different justification. If the objections are specific and substantiated and the examiner nevertheless ignores the objections, the examination assessment is incorrect and must be cancelled.
  • The principle of equal opportunities applies extensively. Comparable examinees must be subject to comparable requirements. The assessment of an examination performance must be in proportion to other assessments of the same examination. The prohibition of deterioration also follows from this principle: the appeal of the examinee cannot lead to a worse grade, and is therefore risk-free with regard to the assessment. However, it also follows from this that the examinee may not thereby gain an advantage over other examinees: the examinee may not initially accept a defect in the examination and then, if the mark is poor, take action against it in order to gain a second chance. Defects must therefore be reported without delay in order to give the examination authority the opportunity to rectify them.
  • Only the examiner himself may evaluate. An examination evaluation is faulty if someone has taken part in it who is not a member of the examination board.

Applicable law

Basic Law

The most important legal norm to be applied is the Basic Law, namely the freedom of occupation

Art. 12 Paragraph 1 GG: All Germans have the right to freely choose their occupation, place of work and place of training. The exercise of the profession may be regulated by or on the basis of a law.

and the guarantee of the right of appeal

Art. 19 Paragraph 4 GG: If someone’s rights are violated by public authority, legal recourse is open to him. Insofar as no other jurisdiction is established, ordinary legal recourse shall be available Art. 10 Paragraph 2 sentence 2 remains unaffected.

However, these fundamental rights are so general and broad that they are of relatively little direct use in a concrete individual case. They do, however, form the basis of recent examination law, because the Federal Constitutional Court has derived the requirements for examination law (see above) from these fundamental rights. It follows, for example, that contrary to widespread misconception, the requirements in a profession-related examination may not be determined by the examiner and also not in individual cases, but require a legal basis. Restrictions on the exercise of the profession can therefore only be imposed by a formal law, by statutory instrument or by statute (the latter only after statutory authorisation). However, Parliament itself must regulate all matters essential to the exercise of fundamental rights.[3] The restrictive law must be sufficiently specific and must “clearly indicate the scope and limits of the interference”.[4]

Because the right of examination has its origins in the Basic Law, the commentary, apart from in the specialist literature on the right of examination, is to be found primarily in the commentaries on the Basic Law to Article 12 Paragraph 1 GG.

Other legal standards

Various federal and state laws are relevant here, but this depends on the individual case, as there are a large number of different vocational training courses and examinations.

In the university sector, these are primarily the Higher Education Framework Act and the respective Land law (University Act or similar), because universities are a matter for the Länder. These normally regulate which examinations there are, who may be an examiner, what the purpose of the examination is and whether, how and for what purpose the university is authorised to issue examination regulations.

The legislator (i.e. the Federal Government and the Länder) is also obliged to formulate the legal remedy against examination decisions. The administrative courts have been urging this for years. However, legislators usually fail to comply, even though higher education laws are regularly the subject of debate, amendment, and political interest. This suggests that legal recourse against examination decisions is politically undesirable and that a certain arbitrariness, although unconstitutional, is de facto approved and promoted by politicians (autonomy of higher education institutions).

Nevertheless, the legal process is not completely unregulated. In the absence of examination-specific regulations, general administrative law applies, i.e. the Administrative Procedure Act or the Land Administrative Procedure Acts (e.g. on file inspection, obligation to state reasons, etc.) and the Administrative Court Code (objection, action, etc.).

The most important and yet weakest legal norm is also the respective examination regulation, which is usually a sub-legal norm with the rank of a regulation. They require statutory authorisation, must meet the requirements of the law and, as a rule, must have been published (Official Gazette). It must regulate the examination procedure and the requirements and standards of the examination, unless this has already been done in the law. It must also define the grades to be awarded. It is not sufficient – as is often the case – to list them only by name. The grades must be provided with reference values (e.g. the number of points to be achieved or a comprehensible description). If an examination regulation is faulty and one suffers a disadvantage as a result, it can be challenged by means of an action for the control of norms (§ 47 VwGO) and have them annulled.

According to a ruling of the ECJ, examination papers are subject to data protection law. Examinees can assert their rights as data subjects, e.g. demand access to their examination papers at any time or have them deleted.[5]

Judicial Law

The law that is most important in the case of a dispute and most useful for the examinee, but which is very unclear, is the law of judges, i.e. the court decisions made so far and published for the general public, mainly by the administrative courts, the higher administrative courts, the Federal Administrative Court and, of course, the Federal Constitutional Court. The publications are usually made in the relevant legal journals, recently sometimes also via the web servers of the courts or commercial databases. However, it is practically impossible for the examinee to obtain an overview of the existing decisions. The entry and the overview is done via the below-mentioned Literature. In case of dispute, however, it is urgently recommended not to be satisfied with the often keyword-like and (too) brief explanations of the literature, but to consult and read the full text of the decisions cited therein in order to exclude misunderstandings etc.

It should be noted that some of the decisions, especially from the period before 1991, have been superseded by the case law of the Federal Constitutional Court, mainly the important decision of 1991 (see above), and are no longer applicable.

Remedies and redress

In general, the examination decision is subject to the administrative legal process. If the legal process is not regulated in special examination law, the normal objection and legal action process applies. Depending on the state law, this can initially be done via an objection to the decision or directly via an action to the administrative court. Reasons must be given for the appeal. The examination assessment by the examiner cannot be challenged directly as a dependent procedural act, but only in conjunction with the examination notice; in some examinations, however, the assessment and the notice coincide. The details can be found in the literature and the applicable laws. The legal remedies of counter-appeal and reminder can also be used.

The principle applies that the judge cannot be the examiner. Therefore, one cannot normally sue for a pass or an improvement of the grade, but only for the annulment of the decision and a new decision after a new evaluation or repetition of the examination. Only in exceptions, such as the incorrect addition of points or arithmetical errors in the formation of the overall grade from individual grades, in which the better grade already results inevitably without a new evaluation, can one sue for a better grade.

In examination law there is the special feature of a second way: the Federal Constitutional Court decided in 1991 (see above) that, on the one hand, the examiner ultimately has a margin of assessment that is withdrawn from judicial review, but on the other hand, the guarantee of legal recourse assures the examinee that he can also defend himself against this. To this end, it prescribed an independent internal administrative review procedure as an “indispensable compensation for the imperfect review of examination decisions by the courts”. However, there have been differences of opinion among the administrative courts as to how this procedure should be structured, whether it should be conducted either as part of the examination prior to the opposition proceedings or only as part of the opposition proceedings. The Federal Administrative Court ruled that it was not a question of this, but only of the fact that the examinee could achieve a review of the examination-specific evaluations with the decisive participation of the original examiners. This procedure could therefore also still be made up for in an administrative dispute. However, the examinee loses his claim if he has waived it or has not raised his objections in time. The examinee must therefore present his objections at the beginning of the administrative court proceedings at the latest. A prerequisite is, of course, that the examination decision has been substantiated in writing in the decisive points. The authority must then forward the objections to the examiners who have to carry out the reconsideration procedure.

As a rule, objections addressed to the examiner or the authority and aimed at the reconsideration procedure do not preserve the time limit for appeal. Therefore, as a matter of principle, an objection or administrative action must be filed or brought in order to preserve the time limit. At the same time (or to be submitted after notice) the further objections are to be raised. The opposition or administrative court proceedings must then be temporarily suspended.

The prohibition of deterioration applies, i.e. the grade cannot be deteriorated by the examinee’s appeal. Therefore, the examinee does not run the risk of a worse grade if he/she appeals against a grade.

Obligations of the examinee

The examinee is not obliged to defend himself against unlawful examination decisions. Nevertheless, he has obligations which he must fulfil in his own interest because only then can the appeal be effective and only then can it be successful.

  • As is generally the case in law, the examinee must meet deadlines for appeals. If the deadline is missed, nothing can be done. However, there are also exceptions to this, for example if the deadline was missed through no fault of the examiner (reinstatement) or if the information on the right of appeal was omitted.
  • Some complaints must be made immediately so that the examination authority or the examiner is given the opportunity to rectify the deficiency or to discontinue the examination. This includes all those deficiencies that are not only in the assessment, but already affect the performance itself. Examples are noise, cold, heat, other disturbances, unclear tasks, etc. The reason lies in the requirement of equal opportunities: The examinee must not have the possibility to accept the disturbance tacitly at first and then to reprimand it later if he does not like the mark. This would give him an inadmissible advantage over other examinees.
  • Reprimands against the assessment must be made in a timely manner, because this essentially depends on the examiner’s memories, which naturally fade. In written examinations this is of rather secondary importance, whereas in oral examinations it is of particular importance. If the examinee intends to challenge an oral mark, then he or she should request a written justification as soon as possible.
  • Objections, especially those raised for the reconsideration procedure, must be specific, substantiated (i.e. explained, substantiated, accompanied by references to the literature or opinions of accepted experts), understandable and helpful. Thus, one cannot simply claim that the examiner is too strict or biased. It is necessary to state precisely what is technically wrong, unlawful or otherwise wrong with the assessment. If the assessment does not stand up to comparison with the assessment of other examinees, this must be substantiated.
  • The examinee can only claim damages if he has tried to avert the damage by legal means.

Literature

On the right to audit

  • Norbert Niehues, Edgar Fischer, Christoph Jeremias, Prüfungsrecht, 7th edition, Verlag C.H.Beck, Munich, 2018, ISBN 978-3-406-70742-1
  • Carsten Morgenroth, Hochschulstudienrecht und Hochschulprüfungsrecht, 2nd edition, Nomos Verlag, Baden-Baden, 2020, ISBN 978-3-8487-5790-9
  • Wolfgang Zimmerling, Robert Brehm: Examination law, procedure – avoidable errors – legal protection, 3rd edition, Carl Heymanns Verlag, Cologne, 2007, ISBN 3-452-24752-X
  • Wolfgang Zimmerling, Robert Brehm: The examination process, 1st edition, Carl Heymanns Verlag, Cologne, 2004, ISBN 3-452-25770-3
  • Norbert Niehues: School and examination law, Volume 2: Examination law, NJW-Schriftenreihe 27/2, 3rd edition, Verlag C.H. Beck, Munich, 1994, ISBN 3-406-38160-X
  • Harald Fliegauf: Examination Law, Guide for the Practice, 1st edition, Verlag Kohlhammer, Stuttgart, 1996, ISBN 3-17-014087-6
  • Christian Birnbaum: Mein Recht bei Prüfungen, 1st edition, Deutscher Taschenbuch Verlag, Munich, 2007, ISBN 978-3-423-50647-2

References to other quotations

  • Hans Herbert von Arnim (ed.): Corruption, Networks in Politics, Offices and Business, 1st edition, Verlag Knaur, Munich, 2003, ISBN 3-426-77683-9
  • Peter Becker: Prüfungsrecht – Eine konstruktive Kritik seiner Rituale. Nomos Verlag 1988, ISBN 3-7890-1548-2

Web links

Individual references

  1. Ref. 1 BvR 419/81, 213/83 = BVerfGE 84, 34
  2. Ref. 1 BvR 1529/84, 138/87 = BVerfGE 84, 59
  3. BVerfGE 41, 251 265.
  4. BVerfGE 86, 28 40.
  5. Malte Kröger:Data protection and audit law – What the Nowak ruling means for the audit system.Retrieved February 6, 2018.